Department of Health publishes DOLS guidance note

The Department of Health has published a guidance note for the assistance of local authorities and those caring for people who may lack capacity.

The note demonstrates the attraction of the Cheshire West judgement (see our previous article here), being the apparent simplicity brought to the question of whether a person who lacks capacity to consent to their living arrangements is deprived of their liberty. The note states that:

"The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5
of the European Convention on Human Rights in the following circumstances:

              The person is under continuous supervision and control and is not free to leave, and the
              person lacks capacity to consent to these arrangements"

The note repeats the statement of the Court that specific considerations that had at one time apparently influenced decision making are not relevant: These are:

• the person's compliance or lack of objection and
• the reason or purpose behind a particular placement
• the relative normality of the placement, given the person's needs. (This means that the person should not be compared with anyone else in determining whether there is a deprivation of liberty. However, young persons aged 16 or 17 should be compared to persons of a similar age and maturity without disabilities.)

The note recommends that carers and carer organisations should:

• "Familiarise themselves with the provisions of the Mental Capacity Act, in particular the five principles and specifically the "least restrictive" principle.
• When designing and implementing new care and treatment plans for individuals lacking capacity, be alert to any restrictions and restraint which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the revised test supplied by the Supreme Court).
• Take steps to review existing care and treatment plans for individuals lacking capacity to determine if there is a deprivation of liberty (following the revised test supplied by the Supreme Court).
• Where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and/ or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.
• Where the care/ treatment plan for an individual lacking capacity will unavoidably result in a deprivation of liberty judged to be in that person's best interests, this MUST be authorised".

Not every situation where an individual is not free to leave will amount to a deprivation of liberty. See the earlier article here.  A distinction is still to be drawn between a restriction upon liberty and a deprivation of liberty. In drawing that distinction, the type, duration, effect upon the individual and the manner of implementation remain relevant considerations.

Whilst the test as set out by the Court can be easily stated it may well give rise to complications when it is applied simply due to its potential breadth and the number of situations that fall within it.

The full Department of Health guidance note is available here.

Extracts from the note are copyright Department of Health and are published here under the Open Government Licence.